Who’s Afraid of Senator Byrd? The Constitution and the Uses of American History Stanley N. Katz Woodrow Wilson School Constitution Day Lecture Princeton University 17 September 2007 A half-page ad in the New York Times Book Review a few weeks ago announced that the Annenberg Foundation Trust’s Annenberg Classroom could help to make Constitution Day, September 17, “easy:” Constitution Day “shaped our HISTORY, it charts our Future.” i The Foundation asserted that “The U.S. Constitution protects the wellbeing of our country and ensures our freedoms. Yet many Americans know little about it. That’s why Congress established Constitution Day – a time to teach future generations about the foundations of our democracy.”ii I wonder how many of you have wondered why you are sitting in Dodds Auditorium on a lovely September afternoon, when you could otherwise be walking along the towpath or at least heading for Firestone? Many years ago when I was finishing my dissertation, a grad school friend was summoned to a job interview at UCLA, and to the astonishment of the History Dept. committee preparing to interrogate him, he spoke first at the meeting, asking “You gentlemen must have wondered why I have brought you together today?” Despite his chutzpah, he got the job. But the answer to the analogous question today is “Senator Byrd.” We would not be here today if the distinguished Senator (D, W.Va.) had not had the chutzpah to write into law on December 10, 2003 the requirement that any and all educational institutions that receive federal monies must offer their students an instructional program on the U.S. Constitution 2 each September 17th. Who’s afraid of Senator Byrd? Well, I am not, but here you are being educated by me about the U.S. Constitution – though perhaps not exactly as the good Senator would have wished. I confess that the first thought that crossed my mind when I read reports of the legislation was that the federal government had no right to determine the curriculum of Princeton University (or any other institution of higher education). But on reflection I have concluded that we while we should go to the barricades in the name of academic freedom if the feds were to mandate a requirement that every undergraduate take a course in constitutional law or history, requiring us to hold a once-a-year educational experience of our own choosing seems sufficiently permissive and respectful of institutional educational prerogatives. And in any case the constitutional status of academic freedom is not so clear. For example, as part of its get-tough-on-Cuba policy, the Bush administration recently issued regulations restricting the travel of U.S. undergraduate students to Cuba for short courses (of the sort that Princeton in Cuba used to provide). The regulations were challenged in the name of First Amendment based academic freedom. Last July 30 Judge Huvelle of the federal District Court in the District of Columbia upheld the regulations on the grounds that what she referred to as “the so-called academic freedom doctrine” applies only to government regulations that control the content of academic speech – and travel restrictions are a different matter.iii More importantly, of course, the federal government has been in the higher education business at least since the passage of the Northwest Ordinance setting aside public lands for the support of public education in 1787 and the Morrill Act that 3 established our magnificent land grant college system in 1862.iv Following in the Jeffersonian republican tradition, mid-nineteenth century Republicans agreed with one of their House members from Illinois, who asked during the Morrill Bill debate: “What is the true, genuine spirit of our institutions: Upon what are they founded? The two great pillars of our American Republic, upon which it rests, are universal liberty and universal education.”v These days we think of the federal government’s role in higher education as primarily the provider of student financial aid and the funding of scientific research, but from the start many Americans have accepted the conceptual link between education and democratic citizenship. Senator Byrd is on safe ground in this respect. I want to suggest to you this afternoon that while the constitutional basis for the Byrd legislation is somewhat problematic, that is not nearly so troubling as what the legislation implies both about how we think about the U.S. Constitution and how we think about the role of history teaching in undergraduate education. That is, I am less concerned about the role of the federal government in mandating teaching requirements in higher education, than I am about it mandating the manner of teaching of U.S. history in particular. Therein hangs a very interesting and consequential tale, which begins with a discussion of the written Constitution, and ends with my own suggestion for the best use of Constitution Day. Of course Senator Byrd is not alone in his veneration for the Constitution, which he famously and invariably carries with him at all times – as do I. [Flourish Constitution] When beginning to write this lecture, I was struck by a passage in a September 1 New York Times article about Condoleezza Rice’s concern for her historical legacy. She told the reporter that she had recently visited the National Archives for the first time (about 4 time, I should think), and spent a morning viewing the Emancipation Proclamation, the Declaration of Independence and (her rank ordering is interesting, friends) the Constitution. vi These documents, she told the Times, gave her a new perspective: “People are still trying to resolve those legacies . [so] I’m not going to worry about my legacy.”vii These are wise words. Secretary Rice seems suggest that the meaning of historic documents is not immediately self-evident, a point that seems to have escaped the Annenberg Foundation, Senator Byrd, and others I shall soon mention. This is not a matter of politics. Many, perhaps most, commentators on public affairs have grand and fixed notions of our Founding documents, but they attach very different significances to these documents and to the Founding Era, some seeming to tie themselves to the past, others using them for present purposes. The very able Dean of this School has recently published a book entitled The Idea that is America, in which she makes a point about the relationship between American ideas and historical context: The American idea took shape at our nation’s founding as a vision and a promise. The Founders foresaw a nation that could be different from any other. They wrote this vision into the Declaration of Independence, the Constitution and the Bill of Rights [a different trio than Condi Rice’s, notice]. But in themselves . .these documents are only words on paper, however venerable the parchment and flourishing the signatures. The idea that is America maybe written in words, but it is realized in our deeds.viii Constitutional law scholars will recognize in this formulation the distinction between “originalists” and advocates of a “living Constitution,” but for the moment I simply want to remind you of the distinction between historical documents and present political realities. The question is how we are connected to our constitutional past? What claims, if any, does it have on us as citizens? 5 Americans have been declaiming on the subject for centuries, perhaps stimulated by what Benjamin Franklin said at the Constitutional Convention in Philadelphia on September 17, 1787, the day on which the Framers actually signed the Constitution of the United States – and now the secret is out as to why we are here on this particular date. Franklin, the new country’s elder statesman, wrote out remarks for James Wilson to read to the Framers two hundred and twenty years ago today. It is a wonderful speech, in which Franklin began by saying that “there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them,”ix words which tell us something important about the multiple ways in which the Framers thought about the document they had produced. He went on to say that he agreed to the Constitution “with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered . I doubt too whether any other Convention we can obtain may be able to make a better Constitution. It therefore astonishes me . to find this system approaching so near to perfection as it does . .”x “Near to perfection” is perhaps the conception we need to hold on to on Constitution Day. “Thus,” Franklin proceeded, “I consent . to this Constitution because I expect no better, and because I am not sure, that it is not the best.”xi Many of you will remember that after the Framers filed by the front of the Hall to sign the parchment, Madison reported that Franklin “looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun.”xii Franklin noted that he had often wondered whether the sun on this chair was rising or falling, “But now,” he said, “at length I have the happiness to 6 know that it is a rising and not a setting sun.”xiii What a happy story for Constitution Day. But of course Franklin could only be sure that the sun was rising in September, 1787.